2021 (2) TMI 928 - HC - GST

Violation of principles of natural justice - Detention of goods - Short ground raised in the present petition is that the first notice of the proceeding fixed 10.02.2020 was served on the petitioner however the petitioner did not appear on the next date fixed - Section 129(3) of the Uttar Pradesh Goods and Services Tax Act 2017 - HELD THAT - Though it is not denied that the notice for the date 10.02.2020 had been served on the petitioner it is admitted on record that no order came to be passed on that date. Further order dated 15.02.2020 makes it clear that the proper officer did not reserve order on 10.02.2020 but kept the proceeding pending till the date 15.02.2020. Even on 15.02.2020 the only order passed was to proceed ex parte - That being the status though the petitioner may not have filed reply it cannot be said that he lost his right to be heard before the order dated 20.02.2020 came to be passed. The orders dated 03.06.2020 and 17.07.2020 are set aside and the matter remitted to the proper officer to pass a fresh order in accordance with law - writ petition is thus allowed .

Summary

Issues involved:
Challenge to order under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 for A.Y. 2019-20 (GST) based on denial of opportunity of hearing.

Analysis:
The petition was filed against the order passed by the Additional Commissioner Grade-II (Appeal) III Commercial Tax, Ghaziabad, dismissing the appeal against the ex parte order under Section 129(3) of the Act. The petitioner contended that the proper officer did not pass any order on the date initially fixed, and the subsequent ex parte order was contrary to law due to the lack of a second notice of the proceeding. The petitioner argued that the order was passed without providing an opportunity for a hearing, violating the principles of natural justice.

The respondent, represented by the Standing Counsel, argued that the petitioner was at fault for not appearing before the proper officer despite the service of notice on the initial date. It was contended that the petitioner should have inquired about the next date fixed and acted diligently. The respondent maintained that there was no error in the order passed by the proper officer or the appellate authority, given the petitioner's failure to participate in the proceedings.

Upon hearing both parties and examining the record, the court acknowledged that while the notice for the initial date was served on the petitioner, no order was passed on that date. The subsequent order to proceed ex parte was made without reserving any decision on the initial date, indicating a lack of due process. The court concluded that the petitioner had not forfeited the right to be heard before the final order was issued. Therefore, the order dated 20.02.2020 was deemed unsustainable, and the appellate authority was found to have erred in upholding it.

As a result, the writ petition was allowed, setting aside the previous orders and remitting the matter to the proper officer for a fresh decision in compliance with the law. Additionally, the petitioner was granted a final opportunity to file a reply to the notice dated 10.02.2020 within a week, ensuring procedural fairness and adherence to the principles of natural justice.